Summary
dismissing plaintiff's §240 claim where the plaintiff was injured by the collapse of a retaining wall while working in a trench
Summary of this case from De La Cruz v. V & C Realty II CorpOpinion
July 29, 1996
Appeal from the Supreme Court, Suffolk County (Underwood, J., Oshrin, J.).
Ordered that the judgment is modified by deleting therefrom the provision dismissing the complaint in its entirety, substituting therefor a provision dismissing so much of the complaint as is based on Labor Law §§ 200 and 240 (1) and common-law negligence, and severing so much of the complaint as is based on Labor Law § 241 (6); as so modified, the judgment is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on so much of the complaint as is based on Labor Law § 241 (6), with costs to abide the event.
The plaintiff Alex Vitaliotis was injured when the side of the trench he was digging and part of a nearby retaining wall collapsed, pinning him in the trench. On these facts, the plaintiffs failed to establish a claim for relief based on Labor Law § 240 (1), since Alex Vitaliotis was not injured as the result of a gravity-related accident, as contemplated under this statute (see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487; Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841; Pinheiro v. Montrose Improvement Dist., 224 A.D.2d 777; Hamann v. City of New York, 219 A.D.2d 583; Smerka v. Niagara Mohawk Power Corp., 206 A.D.2d 891; see generally, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509).
However, the Supreme Court erred in dismissing so much of the complaint as was premised on Labor Law § 241 (6) upon the motion of the defendant, the owner of the premises upon which the accident occurred, for judgment as a matter of law during trial. Judgment as a matter of law during trial was granted upon the ground that the defendant had delegated responsibility for worksite safety to the contractor. It is well settled, however, that the duties imposed upon owners under Labor Law § 241 (6) are nondelegable, and are imposed regardless of whether the defendant exercised supervision or control over the worksite (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra). Accordingly, a new trial is required on the issue of liability under Labor Law § 241 (6).
The resolution of the defendant's claim for indemnification must await further proceedings in the Supreme Court. O'Brien, J.P., Sullivan, Joy and McGinity, JJ., concur.